State v. Stowell

• Court: Iowa Supreme Court
• Writing for the Court: SEEVERS, J.
• Citation: State v. Stowell, 60 Iowa 535, 15 N.W. 417 (Iowa 1883)
• Decision Date: 03 April 1883
• Parties: STATE v. STOWELL

15 N.W. 417

60 Iowa 535

STATE v. STOWELL

Supreme Court of Iowa, Davenport

April 3, 1883

Appeal from Lucas District Court.

INDICTMENT for an assault upon a girl between six and seven years old with intent to commit a rape. Trial by jury, verdict guilty and judgment sentencing the defendant to be confined in the penitentiary for two years, and he appeals.

REVERSED.

O. A Bartholomew and Mitchell & Pennick, for appellants.

Smith McPherson, Attorney-general, for the State.

OPINION

SEEVERS, J.

I.

There was evidence tending to show the defendant was not fourteen years of age at the time the assault was committed, but the jury found specially that he was over that age. Counsel for the defendant, when making his closing argument to the jury, was proceeding to claim that, before the defendant could be convicted, there must be evidence tending to connect the defendant with the commission of the offense. He was stopped by the court, and, in the presence and hearing of the jury, the court said: "Mr. Mitchell, I have grave doubts about the law requiring a corroboration of the prosecuting witness in a case of this kind. I do not think it does. The statute requiring corroboration was enacted to prevent designing women from fabricating and working up, for evil and blackmailing purposes, charges of rape against men. But in cases of this kind, where the prosecuting witness is so young and tender in years that she can neither design or fabricate, the reason of the statute does not exist, and the rule requiring corroboration does not apply."

Thereupon counsel for the defendant desisted from urging the proposition aforesaid to the jury.

Long after the counsel for defendant had closed his argument, but before the jury was instructed by the court, the court, in the presence and hearing of the jury, addressed Mr. Mitchell, defendant's counsel, substantially as follows:

"I prefer to be on the safe side, Mr. Mitchell; you can now address the jury on the assumption that the law requires that the prosecuting witness must be corroborated, to sustain a conviction as charged.

"The counsel declined to avail himself of the opportunity thus offered by the court. At no time did the court say to the jury that it must not be influenced by any of the foregoing language used by the court to the counsel, and hereinbefore set out."

The court instructed the jury that the defendant could not be convicted "upon the testimony of the girl alone, and, unless there is other evidence tending to connect the defendant with the commission of said offense, you should acquit him."

This instruction, whether right or wrong, was the law of the case, and it was the duty of the jury to follow it. It was a material question for the determination of the jury whether the evidence of the prosecutrix was true or had been fabricated. It is, therefore, insisted that the court erred in saying, in the presence and hearing of the jury, that she could neither design nor fabricate the account she gave of the transaction, and that defendant was prejudiced thereby.

That it was for the jury to say whether the evidence of the prosecutrix was true, will not be doubted. It was not the province of the court to say what it did; and had an instruction been given to the jury, in substance the same as the remarks made to counsel in their hearing, it...